EEOC modifies COVID-19 testing and related guidance

August 2022 employment law letter

Authors:

Paul J. Sweeney, Coughlin & Gerhart, LLP

New guidance from the Equal Employment Opportunity Commission (EEOC), updated as of July 12, 2022, now requires employers to conduct individualized assessments of whether current pandemic circumstances and individual workplace circumstances justify continued COVID-19 testing as a precondition to access the workplace. Other EEOC updates take away some of the flexibility afforded to employers in the original guidance. Read on to understand how the new guidelines affect your policies and procedures.

Testing

Most employers know that the Americans with Disabilities Act (ADA) broadly prevents them from making disability-related inquiries or requiring medical exams unless they are “job-related” and consistent “with business necessity.” To help employers combat COVID-19, the EEOC released guidance early on that gave a presumptive “business necessity” justification for COVD-19 screening, including COVID-19 testing.

The updated EEOC guidance provides that employers wishing to implement viral screening must meet the “business necessity” standard based on “relevant facts.” In that respect, the updated EEOC guidance provides that “possible considerations in making the ‘business necessity’ assessment may include”:

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